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Supreme Court Paves Way for Transgender Military Ban to Take Effect

1/22/2019 12:00 AM

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​—Brian Everstine & Jennifer-Leigh Oprihory

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​USAF SSgt. Logan Ireland and his wife, Laila, a US Army veteran, speak to an audience in Polaris Hall about transgender issues during the National Character and Leadership Symposium hosted by US Air Force Academy in February 2018. Air Force photo by TSgt. Julius Delos Reyes.

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The Supreme Court on Tuesday issued an order allowing the Trump Administration’s ban on transgender service members to take effect while lawsuits challenging the order make their way through the courts.

In a 5-4 decision, the Supreme Court suspended two injunctions that had barred the military from putting the service restrictions into effect.

The court also “denied review” of two lawsuits tied to those injunctions, both out of the 9th Circuit Court of Appeals, in which “the government was requesting an expedited review of the lower court decision,” said Chase Strangio, a staff attorney at the American Civil Liberties Union’s LGBT & HIV Project, in a phone interview with Air Force Magazine.

President Trump in July 2017 announced on Twitter the government would not “accept or allow” transgender individuals to serve in the military, prompting a series of lawsuits—such as one from five unnamed individuals, including an airman with about 20 years of service, who claimed the order violates the due process rights of transgender individuals. It also led to a Defense Department review of the impact of the policy.

What Tuesday’s SCOTUS decision means for the ban’s implementation, though, is unclear.

According to Strangio, a separate, nationwide injunction—an ACLU case known as “Stone v. Trump”—remains in place and is keeping the President’s ban from being immediately implemented. Strangio acknowledged the government will “presumably” suspend that court order eventually, but said “nothing changes, practically speaking, with respect to the ban” unless and until it does.

But a Jan. 22 Lawfare blog post by Harvard Law School student Sarah Grant suggests the injunction may not apply. Grant argues that Stone v. Trump “relates to the original ban issued in August 2017” by President Trump—not the amended plan that Mattis put forth the following year.

“The effect of this last remaining preliminary injunction is unclear—whether it singlehandedly continues to prohibit implementation of the Mattis policy despite the stays granted in Karnoski and Stockman and the D.C. Circuit’s decision, or is instead effectively irrelevant because the Mattis policy, not the original policy, is what the administration now seeks to implement,” she writes.

Former Defense Secretary Jim Mattis said in a February 2018 memo to the President that DOD had concluded “there are substantial risks associated with allowing the accession and retention of individuals with a history or diagnosis of gender dysphoria,” which the American Psychiatric Association says “involves a conflict between a person's physical or assigned gender and the gender with which he/she/they identify,” and need or have already gone through “a course of treatment to change their gender.”

DOD also found that exempting trans service members with dysphoria “from well-established mental health, physical health, and sex-based standard could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality,” Mattis wrote.

Consequently, the Pentagon recommended:

Transgender individuals who’ve experienced or been diagnosed with gender dysphoria be “disqualified from military service” unless they’ve identified with the gender that matches their biological sex—also referred to as being “cisgender”—for three straight years “prior to accession.”

Transgender service members who need or have already transitioned to a new gender be disqualified from serving in the US military.

“Service members diagnosed with gender dysphoria after entering into service” be allowed to stay in uniform as long as they don’t need to change their gender and “remain deployable within application retention standards.”

Currently serving service members who have been diagnosed with gender dysphoria since” the Obama-era transgender service policy was implemented but before the DOD’s updated policy on transgender service took effect can stay in uniform “in their preferred gender” and get gender dysphoria treatment that is deemed “medically necessary."

In a statement shared with Air Force Magazine, House Armed Services Committee Chairman Rep. Adam Smith (D-Wash.) condemned the SCOTUS move. “Anyone who is qualified and willing should be allowed to serve their country openly, without their career being affected by an arbitrary, discriminatory directive from the President,” Smith wrote.

Messages left for Sen. James Inhofe (R-Okla.), chairman of the Senate Armed Services Committee, and the Ranking Member of the House Armed Services Committee were not immediately returned.